A union owes a duty of fair representation (DFR) to both a victim of alleged harassment and the worker accused of harassment, if they are members of the collective bargaining unit. The union is obligated to represent each member of the bargaining unit fairly by avoiding conduct that is "arbitrary, discriminatory, or in bad faith." When a represented employee challenges a union’s failure to investigate or pursue a grievance under a DFR theory, the union’s actions will not be considered "arbitrary" if they are based on a fair and impartial consideration of the interests of all employees and represent a "rational" balancing of interests free of political favoritism or personal ill will. The union must conduct at least some minimal evaluation of the merits of the grievance, even if it ultimately determines not to pursue it through arbitration.

Outside of the Title VII context, a union’s failure to act, if due to negligence rather than ill will or other prohibited motivations, will generally not rise to the level of a breach of the duty of fair representation. However, the rules are different in Title VII cases because unions can be statutorily liable for violations of employee rights. Under Title VII, plaintiffs can prevail if they can show: that the employer violated the collective bargaining agreement; that the union let the violation go unredressed, thereby breaching its duty of fair representation; and evidence of gender-based animus motivating the union’s behavior. Other courts hold that a plaintiff’s burden of proof must show whether the union breached its duty of fair representation, and whether its actions were motivated by gender animus.

Although Title VII imposes a duty to process meritorious sexual harassment grievances, proof is required that the union’s conduct in failing to pursue a grievance was intentionally discriminatory. Lack of evidence that the union refused to process a meritorious grievance or acted to prevent the employer from remedying a pattern of sexual harassment may lead to dismissal of claims. Generally, a union official who demands sexual favors from female members seeking union services or benefits will violate the statute. More troublesome are hostile environment cases in which the union’s involvement in or tolerance of the conduct is less clear.

The EEOC’s Enforcement Guidance (Guidance) focuses on employer liability issues and, thus, does not directly address the issues of union qua union liability discussed in this article. One topic addressed at length in the Guidance, however, is the definition of "supervisor." Title VII does not define the term. Because some union-represented workers perform work that has supervisory overtones, the EEOC’s broad definition may include union members who have limited authority to act for an employer. The definition of supervisor is crucial where cases are premised on agency principles, particularly on the notion that a supervisor’s ability to engage in harassing conduct is aided by the authority delegated to them by the employer. An employer is subject to vicarious liability for harassment resulting in a tangible employment action if such action was engaged in by "a supervisor with immediate (or successively higher) authority over the employee."

The EEOC adopted two definitions of "supervisor": (a) an individual who is empowered to make or recommend "tangible employment decisions" affecting an individual worker, or (b) an individual who is authorized "to direct the employee’s daily work activities." In addition, the actions of an individual without authority over an employee could still bind the employer if the victim "reasonably believed" that the individual had supervisory power. With regard to an employer’s responsibility for the conduct of nonsupervisory employees, the employer will be liable for the harassing conduct of co-employees if it knew of the harassment and did nothing about it or "provided no reasonable avenue of complaint."

The Guidance discusses the nature of the affirmative defenses that apply in cases where no tangible employment action has occurred as a result of the harassing behavior. The affirmative defense requires a showing that: "(a) the employer exercised reasonable care to prevent and correct promptly any harassment; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."

The EEOC provides recommendations for antiharassment policies and effective complaint procedures that, if implemented, can satisfy the first prong of the affirmative defense, such as the following: (1) the employer must "establish, publicize and enforce antiharassment policies and complaint procedures"; (2) employees should be provided with copies of such policies; (3) the policies should be easy to understand; and (4) the policies should contain clear explanations of prohibited conduct, assurances of nonretaliation, clearly described complaint procedures, provisions for a "prompt, thorough and impartial investigation," and an assurance that corrective action will be taken if the investigation concludes that harassment has taken place.

The Guidance does not directly address the issue of progressive discipline that frequently arises in the organized workplace under the just cause standard, other than to broadly suggest that "disciplinary measures should be proportional to the seriousness of the offense." The importance of due process principles cannot be overstated, particularly because most organized workplaces are governed by an established progressive discipline system. The agency also cautions that it will not accept discrimination claims by accused harassers who are ultimately exonerated where the employer can show a good faith belief that its disciplinary action was appropriate, and where there is no evidence of disparate treatment.

Common Law Claims—Defamation. Defamation claims against unions are typically focused on statements made during the course of grievance proceedings or during investigations into the allegations. Generally, grievance proceedings are protected under a qualified privilege standard. Plaintiffs are required to establish "actual malice," which is defined as knowledge of falsity or reckless disregard of truth or falsity. Statements made by union officials in other contexts, however, may not enjoy such protection, particularly if there is proof of ill will or gross negligence. However, truth is always a defense.

Qualified privilege protection may also protect statements made by unions in the course of conducting investigations into complaints of harassment or in the course of trying to educate members about the bounds of appropriate behavior, if it can be shown that such statements were made out of "common interest or duty" or as part of "intracorporate" decision-making. Good faith is always a defense in qualified privilege cases. In examining good faith, courts determine whether the challenged statements have been published more broadly than necessary, or contain more information than is necessary to accomplish the legitimate communications objectives of the privilege.

Practical Advice. Unions are in a unique position to provide education and guidance to their represented employees, and to assist in achieving a harassment-free workplace. Complaints of harassing behavior must be taken seriously. When union-represented employees are accused of harassment, fair and impartial investigation will usually reveal whether any discipline was appropriate and the union can act accordingly. Some suggested steps to ensure compliance with all of the union'’ legal duties include: training and educational programs for union staff and members; constitutional and contractual provisions governing sexual harassment; establishing and enforcing clear guidelines for processing harassment complaints; use of internal union disciplinary procedures in appropriate cases; and taking proactive steps to force employers to obey the law and provide a safe and harassment-free working environment.

Mary K. O’Melveny is general counsel to the Coalition of Labor Union Women and special litigation counsel to the Communications Workers of America, AFL-CIO, in Washington, D.C. She is the outgoing co-chair of the ABA Section of Labor and Employment Law’s EEO Committee.

This article is an abridged and edited version of one that originally appeared on page 321 of The Labor Lawyer, Winter/Spring 2000 (15:3).